Paul and Philip Nitschke - debate in Adelaide

Thursday evening was cold, wet and windy in Adelaide. But that did not stop 120 people from turning up to a debate at Adelaide University between yours truly and Dr. Philip Nitschke. Hosted by the Adelaide University Liberal Club (for non-Australian readers, The Liberal Party is the conservative party - yeah, go figure!) it was a very successful debate with many good and respectful questions - so much so that Philip and I fielded questions long after the official closing time.

Many thanks to the AULC, to Philip and to everyone who came along (and thanks to my daughter, Hannah for the photos!)

Here's the text of my talk:

Thank you to the AULC and the organisers of this debate for your invitation to address this gathering today.

What is at issue here is the way our society responds to concerns at the end-of-life and, more specifically the appropriateness of euthanasia & assisted suicide as a compassionate response. Even in the pursuit of our right to make our own choices, to take control of our own circumstances we must ever be mindful of the effect that such pursuits have or may have on the fundamental rights of others.

Euthanasia & assisted suicide legislation will put some people in circumstances where they may be abused, where their rights may be compromised. Euthanasia & assisted suicide legislation cannot be made safe.

What we're talking about is legislating to allow people to kill other people.

Unless you're posing a serious and present threat to my life, I can't kill you. That's a good thing. We all enjoy this protection in law equally, every one of us.

But, now we're saying that it's okay for someone else to kill you.

That is the fundamental issue: we will be making an exception to the Criminal Code that changes the laws on homicide. That is serious stuff.

We'd be creating a right for someone else to kill us or, to put it another way, a right to be killed.

We're clearly talking about rights now. But what would be the nature of this right? Firstly and fore mostly it would be a 'human right'. After all we're not talking about our pet hamster.

Human Rights have universal application. Human Rights intrinsically apply to all people in all places at all times - that's their nature. I don't believe that this is a human right, but that's effectively what it would become.

So all this talk of limiting the scope of such legislation to sub sets of the human family such as the terminally ill for example is baloney. We can't create such a right and then expect to legitimately limit its application.

But that's precisely what almost every euthanasia bill has attempted to do. People may genuinely believe that their bill should only ever apply to a limited number of people in limited severe circumstances. However, insurmountable problems exist both in the framing of these limiting factors and associated safeguards (so-called) and in the consideration of the implications of the right to be killed as a universal.

The Dutch passed euthanasia legislation in 2002. From 1984 the Dutch courts began to extend euthanasia to people living with chronic depression (mental pain); later to children who were born with disabilities, and other vulnerable groups. The 2002 legislation sought to codify the court rulings and to limit the practice.

Euthanasia practice in the Netherlands now includes access for teenagers (with or without parental consent) to people with Alzheimer's (for whom the ability to give informed consent has diminished) and to people experiencing loneliness.

In 2005 there were 550 cases of euthanasia in the Netherlands without request or consent. In 2010 the figure was 310. In the Flanders region of Belgium request or consent was absent in 32% of cases. Informed consent is absolutely necessary for any medical procedure - it is notably absent here - and yet there have been no prosecutions. For those people who died that way, a fundamental human right to make their own choices has been denied.

In 2005, 20% of Dutch euthanasia deaths were not reported. In 2010 this rose to about 23%. In the Flanders region of Belgium only 52.8% of euthanasia deaths were reported in 2007.

Recently the Dutch created mobile euthanasia teams to 'meet unfulfilled need' in the community by visiting people where they live. One press statement suggested that this was partly about where the local doctor had refused euthanasia to a patient. The thought of vulnerable or frail people being euthanased in their homes where the possibility that they might be pressured by a relative to 'do-the-right-thing', which cannot be discounted or accounted for, really shook me.

I'm reminded of a comment Philip (Nitschke) made at one debate in respect to the Dutch where he said that he felt that they were quite wedded to their legislation. And I think he's right. But why?

The only valid conclusion, I believe is that the Dutch by and large see the right to be killed as exactly that: a universal right. Little-by-little over more than two decades they've seen the expansion of euthanasia to more and more circumstances, to more and more people. In that context, the mobile units give people access to their so-called 'human right' to be killed.

Think: If, for example, Bob Such's most recent bill was successful in its attempt to limit the application to people in the terminal phase of a terminal illness, how long do you think it would be before someone who was not at that final stage piped up and said: That's not fair, I want to die too! I'm being discriminated against!

And what if that bill had passed and then we began another debate in which someone put an amendment to broaden the extent of euthanasia to another sub set of the community: would we then be debating whether or not a 'right to be killed' is justified under our law? No, we will have already accepted that principle in passing the earlier bill. We'd only then be debating the merits or otherwise of including others.

Such a debate would effectively be a foregone conclusion - there would be no rational reason for denying that right to a particular group; to argue this way would be totally illogical not to mention discriminatory.

In respect to safeguards and limiting factors: their purpose is simply to help make us and our legislators feel a little less uncomfortable about legislating for killing. That's about it.

In the last Western Australian debate MP Robin Chapple said that he knew his restricted bill wouldn't please everyone but that it was a 'good start'. This clearly implies that someone else can come back and try to amend and expand it at some future moment. Sir Terry Pratchett who funded the Falconer Inquiry in the UK bemoaned the fact that the final recommendations didn't go far enough. In 2010 Mark Parnell observed that too many safeguards would make any bill too restrictive and inaccessible; the corollary of this stark admission is that to make a bill work we must accept an increasing level of risk from abuse.

The pro-euthanasia lobby seems often to have a difference of opinion on what model they should adopt, but they're unified in their intention of getting 'something' on the statutes. That's their goal - fair enough.

Let's look at it from another angle. In many bills we've seen that two doctors need to examine the patient and complete forms. What if this wasn't done? Would the responsible doctor be charged with homicide? No, he or she might simply say that they'd done all the prerequisite checks but simply hadn't done the paperwork. That might be true, but it might not be true - who would ever know - the principal witness is dead. Let's face it, they would probably get some kind of reprimand or fine for not filing the correct forms where the reality might be that they've gotten away with murder! In the Netherlands it is acknowledged that some of the under reporting is due to the fact that some doctors do see killing a patient as a law-given right rejecting any necessity at all for reporting.

There will always be people whom, for whatever reason, have a diminished ability to stand up for themselves or who suffer some significant ailment that makes even the basics of daily living difficult. We know too, that the worldwide phenomenon of Elder Abuse is a serious and growing concern: where elderly people are preyed upon, usually by people who care for them - often a family member; that such abuse includes financial, sexual, physical and emotion abuse. These people need and deserve protection from the ultimate in elder abuse: being pressured into agreeing to ask to be killed.

I said at the beginning that the criminal code prohibiting homicide protects us all equally. With euthanasia & assisted suicide legislation we begin to treat some sections of our community unequally; we begin to put some at risk of abuse. And for some the advent of such legislation may create thoughts that they're 'better off dead' that their lives are of less value than others.

How many people would be abused under such laws? I can't say. But what we can say is that whenever we talk about the statistics we're talking about real people. If the law failed to protect one person then it's a bad law.

This type of legislation deals with life and death; that's a far more serious a matter than our parliaments usually deal with and if we are to retain equal protection of the lives of all Australians we need to take this very seriously.

Ultimately, euthanasia & assisted suicide law is bad law because it fails to protect people. Equality is honoured and served by maintaining the current laws. Our abiding instincts to be compassionate can and should be expressed, but compassion is about bringing care and relief to people suffering, not to eliminate the sufferer. I think we can do much better than that.